The late Supreme Court Justice Antonin Scalia established himself and will long be remembered as a towering hero of the conservative movement. The coming months will likely bring more political wrangling and high-minded rhetoric over the nomination of his successor.
Scalia leaves an impressive legacy as a tireless and unceasing champion of democracy and the constitutional text. On a personal level, of course, he also leaves an impressive family legacy: his wife Maureen and their nine children and over 30 grandchildren.
To be sure, his relentlessly logical approach and doctrinal consistency dramatically influenced the court, even his liberal colleagues, to look to the text and the plain meaning of provisions under review. His textualist approach steered the court away from judicially crafted multi-part tests that seemed more like statutes than judicial decisions. He imposed more analytical rigor in his approach to legal precedents and outcomes. He all but ended the judicial game of justifying outcomes by sleuthing for obscure snippets of language buried somewhere in the many hundreds of pages of "legislative history." Congress, he said, "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes."
As court watchers have recognized, Scalia was also one of the best writers in the history of the Supreme Court.
On the issue of his successor, history may prove instructive. The most recent occasions when a president nominated and the Senate confirmed a Supreme Court selection in a presidential election year were 1956, 1940 and 1932. In two of these cases, a Republican president named Democrats to the high court: President Eisenhower selected William Brennan and President Hoover selected Benjamin Cardozo.
President Obama could follow this precedent and name a Republican to fill Scalia's seat. Rumor had it that Obama was considering Brian Sandoval, the Republican governor of Nevada. That type of nominee would put the pressure back on Senate Republicans to explain to American voters in their home states why a Republican nominee would be unacceptable. But wary conservatives have been burned too many times by the likes of Justices David Souter and Anthony Kennedy, or even Chief Justice John Roberts.
A Republican nominee would present a special challenge for those Republican senators up for reelection in moderate states, such as Sens. Ron JohnsonRon JohnsonThe Hill's 12:30 Report Passing US-Canada preclearance would improve security and economy Overnight Finance: Trump expected to pick Steven Mnuchin for Treasury | Budget chair up for grabs | Trump team gets deal on Carrier jobs MORE (R-Wis.), Rob PortmanRob PortmanGOP debates going big on tax reform Who is Tim Ryan? A closer look at Pelosi’s challenger Battle for the Senate: Top of ticket dominates MORE (Ohio), Mark KirkMark KirkBattle for the Senate: Top of ticket dominates The untold stories of the 2016 battle for the Senate Women make little gains in new Congress MORE (Ill.), Kelly AyotteKelly AyotteBattle brews over Trump’s foreign policy Battle for the Senate: Top of ticket dominates NH voters hold Ayotte accountable for gun control votes MORE (N.H.) and Pat Toomey (Pa.).
The confirmation process changed dramatically over the last few decades, as critics of the Warren Court focused attention on the Supreme Court's failure to act as an umpire calling balls and strikes as it became a super-legislature of unaccountable life-tenured judges who substitute their own policy preferences for duly enacted laws — in the words of the late Professor Herbert Wechsler, a "naked power organ."
Ultimately, we see this frustration on both sides of the political aisle in the presidential nomination contest. We see a great divide between voters' wishes and Washington's failure to deliver the relief they seek. That divide is one reason for the rise of Donald TrumpDonald TrumpPhilippine leader says Trump endorsed his violent war on drugs China protests Trump call to Taiwan leader Trump flirts with Dems for Cabinet MORE (R) and Sen. Bernie SandersBernie SandersDemocrats offer double-talk on Veterans Affairs Dean drops out of DNC chairmanship race Sanders vs. Trump: The battle of the bully pulpit MORE (Vt.).
This presents Senate Majority Leader Mitch McConnellMitch McConnellTrump flirts with Dems for Cabinet Lawmakers eye early exit from Washington Confirm Scott Palk for the Western District of Oklahoma MORE (R-Ky.) and Senate Judiciary Chairman Chuck GrassleyChuck GrassleyDrug pricing debate going into hibernation GOP leaders host Trump's top deputies Key Republican wants details on Ohio State attacker MORE (R-Iowa) the perfect opportunity to redeem Washington Republicans with frustrated voters of all persuasions.
The people gave Republicans a majority in the House of Representatives in 2010. They voted House Majority Leader Eric CantorEric CantorChamber of Commerce overhauls lobbying operation Laura Ingraham under consideration for White House press secretary VA Dems jockey for Kaine's seat MORE (R-Va.) out of office in a Republican primary. They gave Republicans a Senate majority in 2014. They essentially forced Speaker House John BoehnerJohn BoehnerLobbying World 'Ready for Michelle' PACs urge 2020 run News Flash: Trump was never going to lock Clinton up MORE (R-Ohio) to resign last fall.
Voters sent Republicans to Washington to use their rare and historic control of both Houses of Congress to stop President Obama. It is high time now, in the fourth quarter of Obama's presidency, to use this empowerment on the most important issue of our time. McConnell and Grassley deserve credit for recognizing the importance of this moment and the charge they have from voters.
President Obama could choose to follow the examples of Presidents Eisenhower and Hoover by crossing party lines. He could nominate a solid defender of the rule of law and the Constitution, such as Sen. Mike LeeMike LeeWill Trump back women’s museum? Overnight Cybersecurity: Lawmakers pushing for vote to delay warrant rule changes Coons to call for voice vote to halt changes to hacking rule MORE (R-Utah). If so, the Senate would have an easy time confirming Obama's selection. If not, the country will be better off leaving Justice Scalia's chair empty until a worthy successor can be found.
Trotter is a political analyst and attorney. Her views are her own.